Whitney v. First National Bank

55 Vt. 154

• Court: Supreme Court of Vermont
• Decided: October 15, 1882
• Status: Published

Opinion

The opinion of the court was delivered by

Redfield, J.

This is an action on the case, charging the defendant with negligence and want of care in keeping $4000 of U. S. bonds as a special deposit, a’nd by which negligence said bonds were lost. The defendant executed and delivered to the plaintiff, on delivery of the bonds, the following contract or receipt:

“ The National Bank of Brattleboro, Brattleboro, Yt., July 23d, 1866. Received of J. D. Whitney, four thousand dollars for safe keeping, as a special deposit. S. M. Waite, C.”

The written contract states the understanding of the parties, and by that the obligation and duties of the defendant must be determined. The words in the contract “ for safe keeping,” merely express the purpose of the deposit; and it would be implied if it had not been expressed. It was, as we think, a naked deposit, without reward. The possible conjectural benefit that might accrue to thé defendant by purchasing the coupons, if the depositors should offer to sell them'to the bank, when there was no obligation to do so, is too remote. The bank would be supposed to have provision for greater security for the safe keeping, of money and valuable papers than dwelling-houses and other ordinary buildings ; and it would be implied that these bonds were to be kept in the vault of the bank, and with the same security as the bank afforded to valuables and papers of like character of its own ; and a less degree of care and diligence would be required than if the bonds had been received by the defendant for hire and reward, or for some temporary use of its own.

The exact measure of responsibility of a naked bailee, without reward, is-stated in somewhat different language by text writers, and in the adjudged cases. Sir Wm. Jones states: “That a bailee of this sort is answerable only for fraud or for gross neglect, which is considered as evidence of it, and not for such ordinary inattentions as may be compatible with good faith . . in this case the measure of diligence is that which the bailee uses in his own affairs” The nature of the property and purposes the parties had in viewj as appears from the quality of the property and character of the act of deposit, are a part of the case. Banks are instituted, and its buildings constructed, for the delivery in, and safe keeping of, money and money securities ; and these bonds were deposited in the defendant’s bank for the greater security of the bonds, — “ for safe keeping.” And it must be implied that the defendant undertook to use all the appliances for the security of its own property for “ the safe keeping ” of the plaintiff’s bonds, and in good faith. But it would not be. liable for the robbery or larceny of the bonds, unless there was complicity or bad faith. The defendant requested the court to charge the jury that upon the evidence the bailment was gratuitous. The court declined so to charge, but did charge that the bonds were delivered at the solicitation of the defendant. The plaintiff testified that the cashier passed the bonds in an envelope to the plaintiff on the counter of the bank, and remarked, “ You can leave these bonds, if you would like to, for safe keeping.” Plaintiff enquired, “ if they would be safe to leave them there ?” The cashier replied, “ they will be as safe as our own property.” There was in this no solicitation for the custody of the bonds, or suggestion of expected benefit, but merely a suggestion that he might leave them if he chose to, and they would be safe as their own property. The bank obtained no right to sell or use the bonds, but a naked custody. If the plaintiff left the bonds, after the interview as detailed by himself, it was of his own free will and choice. The court charged the jury that there was evidence of a special agreement to keep the bonds safely. But, as has been intimated, the leaving the bonds for “ safe keeping,” or accepting them for that avowed purpose, is not a covenant or warranty that the defendant will protect the bonds absolutely from all danger, or indemnify the ' plaintiff against loss, but is rather a declaration of the purpose of the parties in placing them in the defendant’s safe, and giving the protection and immunity which the means of safety in the bank afforded like securities of the defendant.

The court further charged that there was evidence in the case tending to show that “ the bank received benefit from the special deposit by the purchase and sale of the gold coupons; and perhaps in some other way; perhaps in the purchase and sale of the bonds themselves.”

It is to be noticed that the contract gave the defendant a naked custody of the bonds, without any right to sell or use the bonds or coupons. If plaintiff should thereafter'elect to sell the coupons to the defendant, it was a matter of choice, and we see nothing in the case evidencing that in the sale of coupons to the defendant there was other benefit than an accommodation to the plaintiff.

We think the court erred in allowing the jury to go into speculation and conjecture to conceive a possible benefit to the defendant from the deposit in order to find a different rule of liability than that imposed by the contract. It was error to instruct the jury that there might be benefit to the defendant “ perhaps in the sale of the bonds,” when by the contract it had no right to do so ; and “perhaps in some other way,” a way not disclosed' by the evidence or known to the court. This being a naked bailment, without reward, the legal rights and duties of the parties arise from the character of the property and relation of the parties. And when “ the winds are let loose,” and the imagination has no rein, arising from the loss of property, by the alleged robbery of a public money institution, affecting the rights of many persons, it is the more incumbent upon courts to keep the case “ well anchored” in the law, and keep out of the case all evidence, especially combustible matter, that does not legally affect the rights and duties of the parties. The rule of law affecting this class of bailments (unless there be special facts which qualify the duties which this case does not disclose) would require this defendant, considering the nature of-the property, to have kept the bonds, in good faith, within its safe, under all the safeguards afforded to like property of its own. This is the concurrent rule of the civil and common law. Jones on Bail., pp.122-123, p. 46, note 18 ; Lord Holt, in Coggs v. Bernard, 2 Lord Raym. 915 ; Chancellor Kent, 2 Com. 562; Foster v. Essex Bank, 17 Mass. 479; First Nat. Banh of Carlyle v. Graham, 100 U. S. 644.

The plaintiff claims that there, was evidence of negligence of the defendant, in this, that there was a passage way from the rear of the. banking room, behind the counter, not protected by a gate ; that the safe was left open, during business hours, for convenient access of the bank officers in the transaction of business ; that a short time, about noon, each day, the bank was left in charge of one person, while his associate was absent to dinner. Negligence was a fact to be proved by the plaintiff to the jury. But there would seem nothing so unusual in these facts, if proved, that they could be accounted negligence, much less gross negligence, such as would charge the defendant. ■ A gate was proved to be in use in some banks, and would be in a measure, doubtless, a barrier against intrusion, but slight in its character. New appliances for the safety of property are suggested by experience, and applied from time to time if found useful, but none have been found that subtle villainy cannot surmount or evade. All banks have not the same protection against fire, robbery and violence ; and none are absolutely safe. Men have been gagged and robbed in the banks and on the street. Yet men continue to travel the street with money and valuable papers in their pockets, and cashiers continue during business hours to manage banks alone in the country villages of this state; and it is deemed safe. Robbery at midday in a country village, like lightning or the whirlwind, is not kept in mind as a present danger. When a loss occurs, the mind becomes quickened, and conceives that this or that precaution would have averted it. There are manifold inventions for the security of property, fire-proof and burglar-proof locks and safes, and more appliances in the cities where the amount and exposure is greater, but all are not the same. But where a deposit is made in a country bank or country store for safe keeping, the law implies a duty to employ the means of security, and keep it as he does his own.

II. To prove the loss of the bonds by the defendant’s negligence, the plaintiff introduced the depositors of bonds, of different character, at various times with the defendant for safe keeping ; and they were allowed against defendant’s exceptions to state their several interviews with Waite, the cashier of defendant’s bank. In one case the depositor had lost his receipt for the bonds, and • the cashier declined to account for the bonds until the receipt was produced; and when he found the receipt he intimated to the cashier that he would have lost the bonds if he had not found the receipt, whereupon the cashier requested him to leave the bank. If Waite was in the wrong in that altercation, it is not easy to see how it should prejudice the defendant in this case. No property was lost, but the witness intimates that Waite showed an improper disposition. It should be noticed that this evidence was offered, on the opening of the case, to prove the averments in the declaration, that plaintiff’s bonds were lost by the negligence and want of care of the defendant. Most of this evidence does not tend to show a want of care but rather with the want of good faith in purpose and intentions. Many of the contracts of the depositors were unlike this; and in one case the cashier was specially authorized to cut off the coupons, as they became due, and give credit for them on the bank books, and the using of the coupons did not tend to show a wrongful appropriation. It would not do to prove that other depositors and customers of the bank had suffered insolence or wrong at the hands of Waite, and therefore infer this plaintiff may have suffered in some manner by the misconduct of Waite. Most of the detailed interviews between other depositors and Waite are matters inter alios, and not a part of the res gestae in issue in this case, and therefore not legal evidence in this case. If it had been offered to rebut that part of the defence, that the bonds in question were lost by robbery of the bank, some. part of the testimony of the other depositors might perhaps be properly admissible, so far as any of the testimony might tend to show the bonds deposited for safe keeping, or other property in the bank, had been wrongfully abstracted or embezzled by an officer of the bank; but no recovery could probably be had on that ground under this declaration, as it has been stated to us in argument. The fact that the defendant received on deposit bonds other than the plaintiff’s was, of course, properly admissible.

III. In regard to the charge of the court and the many exceptions to it, as the case must be sent back to the County Court for another trial, we omit to say more than we have already said, except that on this matter of the defendant’s liability, we think he was entitled to have his eleventh, twelfth, thirteenth and fourteenth requests complied with. We think, also, the charge of the court that the non-production of the books of the bank by the defendant might be considered by the jury to its prejudice was error. No notice had been given to the defendant to produce the books ; no request for their production during the trial; no evidence in the case that there was any entry on the books touching these bonds, and the books were then in the hands of the receiver. If the plaintiff wished the books of the bank in evidence, he should have called for them in some proper way, or otherwise “ held his peace.” And we see no ground of presumption that there were entries on said books that would have been of benefit to either party.

Judgment is reversed and cause remanded.